14 Edw. III. c. 10. that if any gaoler by too great duress of imprisonment makes any prisoner, that he hath in ward, be[129] come an approver or an appellor against his will: that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the gaoler. For, as sir Edward Coke observes, it is not lawful to induce or excite any man even to a just accusation of another; much less to do it by duress of imprisonment and least of all by a gaoler, to whom the prisoner is committed for safe custody.

3. A THIRD offence against public justice is obstructing the execution of lawful process. This is at all times an offence of a very high and presumptuous nature; but more particularly so, when it is an obstruction of an arrest upon criminal process. And it hath been holden, that the party opposing such arrest becomes thereby particeps criminis: that is, an accessory in felony, and a principal in high treason." (2) Formerly one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter themselves from justice, (especially in London and Southwark), under the pretext of their having been antient palaces of the crown, or the like: all of which sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal, by the statutes 8&9 W. III. c. 27., 9 Geo. I. c. 28., and 11 Geo. I. c. 22., which enact, that persons opposing the execution of any process in such pretended privileged places within the bills of mortality, or abusing any officer in his endeavours to execute his duty therein, so that he receives

(2) It seems that there must be a knowledge of the party's guilt of the particular species of offence, to implicate the person opposing his arrest, as accessary to the crime (see Hawkins in the place cited); though where the party is actually in the custody of an accredited officer, as a constable or sheriff, he that rescues him must at his peril take notice of the crime with which he is charged. It should, however, be understood in all these cases, that where clergy is taken away from the original felony by statute, the person so hindering his arrest shall still have his clergy. 1 Hale P. C. 606. See the 1 & 2 G. 4. c. 88. p. 131. n.(6).

bodily hurt, shall be guilty of felony, and transported for seven years and persons in disguise, joining in or abetting any riot or tumult on such account, or opposing any process, or assaulting and abusing any officer executing or for having executed the same, shall be felons without benefit of clergy. (3)

4. AN escape of a person arrested upon criminal process by eluding the vigilance of his keepers before he is put in hold is also an offence against public justice, and the party himself is punishable by fine or imprisonment. But the officer permitting such escape, either by negligence or connivance, is much [180] more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody, till cleared by the due course of justice. Officers therefore who, after arrest, negligently permit a felon to escape, are also punishable by fine: but voluntary escapes, by consent and connivance of the officer, are a much more serious offence: for it is generally agreed that such escapes amount to the same kind of offence, and are punishable in the same degree as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. And this whether he were actually committed to gaol, or only under a bare arrest.' But the officer cannot be thus punished, till the original delinquent hath actually received judgment or been attainted upon verdict, confession, or outlawry, of the crime for which he was so committed or arrested: otherwise it might happen, that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemesnor. (4)

d 2 Hawk. P. C. c. 17. s. 5.

e 1 Hal. P. C. 600.

f 1 Hal. P. C. 590. 2 Hawk. P. C. c.19. s. 22.

1 Hal. P. C. 598, 9. 2 Hawk. P.C. c. 19. s.26.

(3) The 9G.1. c.28., by which the capital punishment was imposed upon the offence last described, has been repealed in that part by the 1 G. 4.

c.116.

(4) The offence for which the party is in custody must be a capital crime

at

5. BREACH of prison by the offender himself, when committed for any cause, was felony at the common law: or even conspiring to break it. But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II. st. 2., which enacts, that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. So that to break prison and escape, when lawfully committed for any treason or felony, remains still felony as at the common law; and to break prison, (whether it be the county-gaol, the stocks, or other usual place of security,) when lawfully confined upon any other inferior charge, is still punishable as a high misdemesnor by fine and imprisonment. For the statute [131] which ordains that such offence shall be no longer capital, never meant to exempt it entirely from every degree of punishment'. (5)

h 1 Hal. P. C. 607.

i Bract. 1.3. tr. 2. c.9.

j 2 Hawk. P. C. c. 18. s. 21.

at the time he is suffered to escape, in order to make the voluntary escape capital in the officer. So that if A is in custody for having dangerously wounded B and the officer suffers him to escape; though B should afterwards die, and A thereupon become guilty of murder, yet the escape will not be capital, for A was in custody only for a misdemeanour at the time of the escape. Hawk. P. C. B. 2. c. 19. s. 25. This rule applies also to breaches of prison within the exception of the statute of Ed. 2. Ib. c. 18.

s. 14.

The provisions already mentioned in the text, reach cases only where the escape is actually effected; but by the 16 G.2. c.31., which is mentioned for another purpose in the following page, it is made a felony punishable by transportation for seven years, to assist any prisoner in attempting to make his escape from the custody of any officer or person having lawful charge of him by virtue of a warrant of commitment for treason or felony (except petty larceny), expressed in such warrant (and therefore a commitment on suspicion is not within the act, 1 Leach, 97, Walder's case); or to assist any felon in attempting to make his escape from any boat or ship carrying felons for transportation, or from the contractor for their transportation, his assigns or agents, or any person to whom such felon shall have been delivered, in order for transportation.

(5) The offence of prison-breach is in law and reason also complete, whether the party was or was not guilty upon the charge for which he was imprisoned; and therefore Hale lays it down that he may be tried and have judgment for it, before trial of the principal felony. At the same time, with more mercy than consistency, he lays down that, if he has been tried for the principal felony and acquitted, he shall not be tried for the prisonbreach, or may plead his acquittal in bar. 1 Hale, H. P. C. 611. The

practice

6. RESCUE is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offence in the stranger so rescuing, as it would have been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one apprehended for felony, is felony; for treason, treason; and for a misdemesnor, a misdemesnor also. But here likewise as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished and for the same reason; because perhaps in fact it may turn out that there has been no offence committed. By statute 11 Geo. II. c. 26. and 24 Geo. II. c. 40. if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II. c.31. to convey to any prisoner in custody for treason or [any] felony [except petty larceny] any arms, instruments of escape, or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years: or if the prisoner be in custody for petit larceny or other inferior offence, or charged with a debt [damages or costs amounting in the whole to] 1007., it is then a misdemesnor, punishable with fine and imprisonment. And by several special statutes', (6) to rescue, or attempt to rescue,

* 1 Hal. P. C. 607. Fost. 344. 16 Geo. I. c. 23. (Transportation.) 9 Geo. I. c. 22. (Black-act.) 8 Geo. II. (Destroying turnpikes, &c.)

c. 20.

19 Geo. II. c. 34. (Smuggling.) 25 Geo. II. c. 37. (Murder.) 27 Geo. II. c.15. (Black-act.)

practice in consequence, I believe, is to try for the principal felony first, and in case of acquittal, to abandon the prosecution for prison-breach.

(6) Other statutes might be added to those cited in the margin, which will however be more conveniently noticed under the several offences to which they reply. As to those cited, the 6 G. 1. c. 23. will be considered hereafter; the capital punishment for rescuing persons in custody under the greater number of the offences specified in the 9 G. 1. c. 22., and 27 G.2. c. 15., has been taken away by 4 G.4. c. 54., and transportation or imprisonment with or without hard labour substituted; the 1 G. 4. c. 115. has repealed the capital part of the 8 G. 2. c. 20., substituting the punishments last mentioned; the 52G.3. c.143. has done the same with the 19 G.2. c.34. The 1&2 G. 4. c. 88. is a general statute made for the amendment of the law of rescue. It provides, that where any one shall be convicted of felony for the rescue, or assistance in the rescue of any one, and be thereupon entitled

[132]

any person committed for the offences enumerated in those acts, is felony without benefit of clergy: and to rescue, or attempt to rescue, the body of a felon executed for murder, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the black-act, 9 Geo. I. c. 22. and being required by order of the privy council to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy.

7. ANOTHER capital offence against public justice is the returning from transportation, or being seen at large in Great Britain, before the expiration of the term for which the offender was ordered to be transported, or had agreed to transport himself. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I. c. 11. 6 Geo. I. c. 23. 16 Geo. II. c. 15. and 8 Geo. III. c. 15. as is also the assisting them to escape from such as are conveying them to the port of transportation. (7)

8. An eighth is that of taking a reward, under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villainy in the beginning of the

entitled to clergy, and be liable to one year's imprisonment, the court instead thereof may sentence him to transportation for seven years, or to imprisonment with or without hard labour for any term not less than one nor more than three years. And it provides also, that where any one shall be convicted of a misdemeanour for assaulting any officer or other person, with intent to hinder the lawful apprehension or detainer of any person charged with or suspected of felony, the court may, in addition to any punishment to which such offender is already liable, sentence him to hard labour for any term not exceeding two years, nor less than six months.

(7) So much of all these statutes as relates to the punishment of persons returning from transportation, is repealed by the 5G. 4. c.84., a general act on the subject of transportation. By sect. 22. the offence is made capital, and may be tried either in the county or place where the party shall be apprehended, or from which he was ordered to be transported. By the same section, the offence of rescuing, or attempting to rescue, or of conveying disguise, instrument for escape, or arms to any one while in the act of being removed or transported, is made punishable in the same manner as prison-breach. A reward of 201. is to be given for the discovery and conviction of any such offender at large.